NILLU ALIAS PRASANTA KUMAR PATTOJOSHY v. STATE OF ORISSA
1988-08-18
V.GOPALASWAMY
body1988
DigiLaw.ai
JUDGMENT : V. Gopalaswamy, J. - This revision is preferred against the orders dated 22.3.1979 and 15.10.1984 passed by the learned Sub-divisional Judicial Magistrate, Berhampur, in Misc. Case No. 62 of 1979. 2. The impugned order dated 22.3.1979 reads thus: Prosecution report u/s 110 Code of Criminal Procedure received from 1.1 C.B. Town P.S. against the delinquent Nillu ' P.K. Pattajosi. It is reported that the delinquent is now U.T.P. in Circle Jail Berhampur. Hence issue production warrant to the Circle Jail, Berhampur, Case to 29.3.79 for production. 3. On a reading of the above impugned order dated 22.3.79, it has to be presumed that the learned S.D.J.M. had initiated a proceeding u/s 110, Code of Criminal Procedure which contains provisions for taking security for good behaviour from habitual of fenders and, desperate characters. Section 110, Code of Criminal Procedure provides that before proceedings are initiated under that seen in the Magistrate must receive certain information, and on receipt of such information the Magistrate may require the person informed against to show cause "in the manner hereinafter provided". The Magistrate can call upon a person to show cause only u/s 111, Code of Criminal Procedure, because the words "in the manner hereinafter provided" occurring in Section 110, Code of Criminal Procedure means in the manner laid down in Section 111, Code of Criminal Procedure. The passing of a preliminary order u/s 111, Code of Criminal Procedure is mandatory and such an order is the foundation of the jurisdiction for initiating proceedings, u/s 110, Code of Criminal Procedure. 4. While making an order u/s 111, Code of Criminal Procedure the Magistrate is required to set forth the substance of the information received. The object of such requirement is two-fold: First, to ensure that the Magistrate applies his judicial mind to the facts and circumstances of the case before exercising the preventive magisterial jurisdiction; and secondly, to enable the person proceeded against to have reasonable opportunity to come prepared for what he has to meet. What is meant by the expression "substance of the information" used in Section 111, Code of Criminal Procedure (which corresponds to Section 112 of the old Code of Criminal Procedure), has been explained by the Supreme Court in Madhu Limaye Vs.
What is meant by the expression "substance of the information" used in Section 111, Code of Criminal Procedure (which corresponds to Section 112 of the old Code of Criminal Procedure), has been explained by the Supreme Court in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, in the following: ...Although the section speaks of the 'substance of the information' it does not mean the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the Jurisdiction and the word 'substance' means the essence of the most important parts of the information. 5. On a perusal of the impugned order dated 22.3.1979, quoted in para 2 above it is seen that the Magistrate has neither given the substance of the information said to have been received by him nor has he given any indication as to what has weighed with him to initiate the proceedings. There is nothing in the impugned order to suggest that the Magistrate had applied his judicial mind to the facts of the case, before initiating preventive action. As the impugned order does not satisfy the requirement of Section 111, Code of Criminal Procedure the same is liable to be quashed. See the recent: decisions of this Court in Bairagi Charan Jena and Others Vs. State of Orissa and Another, and in Rama Chandra Jena and Others Vs. Muralidhar Onjha and Others, . 6. From a perusal of the impugned order it is seen that production warrant was issued for producing the Petitioner on 29.3.1979, as he was an under trial prisoner in Circle Jail, Berhampur, by the relevant date. It is to be presumed that the Magistrate had issued such' warrant u/s 113, Code of Criminal Procedure. In that case also, on a plain reading of Section 114, Code of Criminal Procedure it is clear that the warrant so issued, shall be accompanied by a copy of the order made u/s 111, Code of Criminal Procedure. But as earlier found, no valid order u/s 111, Code of Criminal Procedure was at all drawn by the Magistrate. So in any view of the matter, the proceedings initiated in Misc.
But as earlier found, no valid order u/s 111, Code of Criminal Procedure was at all drawn by the Magistrate. So in any view of the matter, the proceedings initiated in Misc. Case No. 62 of 1979, purporting to be under Sections 110 and 113, Code of Criminal Procedure, on the basis of the impugned order dated 22.3.1979, are not maintainable and liable to be quashed and the same are, therefore, hereby quashed. By the quashing of the proceedings in the Misc. Case the other impugned Order dated 15.10.1984 passed in the course of the proceedings, issuing fresh non-bailable warrant of arrest against the delinquent fixing 12.12.1984 for execution, stands automatically quashed. 7. In the result, the revision is allowed. Final Result : Allowed